Employee Failed to Mitigate after Rejecting Full-time Work in Favour of a Part-time Position

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  • December 7, 2016

Employee Failed to Mitigate after Rejecting Full-time Work in Favour of a Part-time Position

An employee’s entitlement to severance arising from her wrongful dismissal ended when she accepted employment from a new employer on a part-time basis, even though the new employer offered her full-time work. In Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026, the B.C. Supreme Court found that by turning down full-time work, Ms. Schinnerl had failed to mitigate her damages and the defendant’s obligation to pay her severance had therefore ended.

Ms. Schinnerl was employed by Kwantlen Polytechnic University (“Kwantlen”) as the Director of International Programs for more than nine years. She was terminated without cause and offered severance in the form of salary continuation for 10 months. Three months after her termination, Ms. Schinnerl was offered a full-time position with Douglas College. She accepted the job, but negotiated that she would work on a part-time basis from June 2016 until December 2016 (the remainder of the salary continuance period with Kwantlen), after which she would work full-time. Kwantlen ended the salary continuation in June on the basis that she had obtained alternate employment.

Ms. Schinnerl brought a claim arguing that she was entitled to 10 months’ severance, that she fulfilled her duty to mitigate and her severance should not have been cut-off. She argued that the reason she accepted part-time employment with Douglas College was to pursue her doctoral studies at the same time.

Ms. Schinnerl relied on language from Forshaw v. Aluminex Extrusions Ltd., [1989] B.C.J. No. 157 about the duty to mitigate which provided:

“The duty to ‘act reasonably’, in seeking and accepting alternate employment cannot be a duty to take such steps as will reduce the claim against the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his own interest – to maintain his income and his position in his industry, trade or profession.”

Ms. Schinnerl argued that it was “within her interests” to work part-time and complete her doctoral studies. The Court rejected this argument and decided that by declining a full-time position, she had failed to properly mitigate her damages. The Court stated at paragraph 37:

“I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests, but I do not agree this means her former employer is required to pay for the interest of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal.” (emphasis added)

The Court agreed that Kwantlen’s obligation to pay notice to the plaintiff ended in June of 2016 when she commenced employment with Douglas College. It concluded that she was entitled to “choose not to take full-time employment but the cost of that choice does not lie with the defendant.”

The holding in Schinnerl is a reminder to employees who are terminated that the duty to mitigate is a serious one that should be carefully considered.